Category Archives: US Constitution

unconstitutional for non-citizens to vote: new york supreme court

The Epoch Times, 6/27/2022, by Bill Pan

New York Supreme Court judge ruled on June 27 that a recently passed New York City law that extends voting rights in municipal elections to noncitizens is unconstitutional.

In December 2021, the New York City Council passed the “Our City, Our Vote” measure in a 33–14 vote. It was signed into law by then-Mayor Bill de Blasio and took effect in January, allowing foreign nationals who legally reside and work in the city to register to vote at the municipal level. The law doesn’t apply to state or federal elections.

The measure effectively created more than 800,000 new voters who would have been able to cast ballots in next year’s city council election.

A coalition of mostly Republican voters and elected officials challenged the law in court shortly after its enactment. Staten Island Borough President Vito Fossella, a Republican endorsed by former President Donald Trump, argued in the complaint that the law is in conflict with New York state’s own constitution.

The case was heard earlier this month by state Supreme Court Justice Ralph Porzio. In his June 27 ruling, Porzio sided with the plaintiffs, stressing that U.S. citizenship is a prerequisite to being able to vote in New York.

“The New York State Constitution expressly states that citizens meeting the age and residency requirements are entitled to register and vote in elections,” Porzio wrote, emphasizing the word “citizens.”

“Though voting is a right so many citizens take for granted, the City of New York cannot obviate the restrictions imposed by the Constitution.”

In the complaint, the plaintiffs argued that the law would “dilute” the power of citizens’ votes and force elected officials to change the way they campaign and could possibly hurt their chances of winning future elections. Porzio found these arguments plausible.

“The weight of the citizens’ vote will be diluted by municipal voters and candidates and political parties alike will need to reconfigure their campaigns,” the justice wrote. “Though Plaintiffs have not suffered harm today, the harm they will suffer is imminent.”

New York City Council Minority Leader Joseph Borelli, a Republican representing Staten Island’s South Shore, applauded the ruling.

“Today’s decision validates those of us who can read the plain English words of our state constitution and state statutes: Noncitizen voting in New York is illegal, and shame on those who thought they could skirt the law for political gain,” he said in a statement.

“Opposition to this measure was bipartisan and cut across countless neighborhood and ethnic lines, yet progressives chose to ignore both our constitution and public sentiment in order to suit their aims. I commend the court in recognizing reality and reminding New York’s professional protestor class that the rule of law matters.”

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Abortion Activists Protest Across the Country; Abortion Ban Takes Effect in Several States

Abortion Activists Protest Across the Country; Abortion Ban Takes Effect in Several States

Ohio’s Abortion Ban Becomes Law

A ban on most abortions at the first detectable fetal heartbeat became the law in Ohio on Friday following the U.S. Supreme Court decision overturning Roe v. Wade.

Enforcement of Ohio’s 2019 “heartbeat” ban had been on hold for nearly three years under a federal court injunction. The state attorney general, Republican Dave Yost, asked for that to be dissolved because of the high court’s ruling, and a federal judge agreed hours later.

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Abortion Providers in Arizona Halt Procedures

Abortion providers across Arizona halted procedures Friday as they try to determine whether a law dating to pre-statehood days means their personnel could face prison time after the U.S. Supreme Court overturned Roe v. Wade.

The possibility of prosecutions was just too risky, said Brittany Forteno, president and CEO of Planned Parenthood Arizona.

She said the state’s largest abortion provider is working with its attorneys to “understand Arizona’s tangled web of conflicting laws.”

At least two other large providers in Tucson and Phoenix followed suit.

At issue is a law that dates to at least 1901, 11 years before Arizona became a state. It subjects anyone who provides abortion care to a possible two to five years in prison. Republicans in the state Senate believe the pre-Roe law is enforceable.

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Abortion Clinics in Alabama Stop Providing Services

Abortions swiftly came to a stop in Alabama as a 2019 state abortion ban took effect, making it a felony to perform an abortion at any stage of pregnancy, with no exceptions for rape or incest victims.

All three clinics in the state stopped providing services Friday morning after a federal judge granted the state’s request to lift an injunction and allow the state to enforce the ban, after the U.S. Supreme Court overturned Roe v. Wade.

The only exception to the state’s abortion ban is for the sake of the mother’s health.

Gov. Kay Ivey praised the Supreme Court decision.

“I could not be more proud as a governor, a Christian, and a woman to see this misguided and detrimental decision overturned,” Ivey said. “Alabama will continue standing up for our unborn babies, our mothers, and our families.”

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Abortion Ban Takes Effect in Arkansas

The Arkansas Department of Health on Friday notified the state’s two abortion providers that its ban on the procedure had taken effect under a law triggered by the Supreme Court ruling. The law bans abortions except to protect the life of the mother in a medical emergency.

The notices advise the facilities that performing an abortion in violation of the law is punishable by up to 10 years in prison and a fine of up to $100,000.

Planned Parenthood said it would no longer be able to offer abortions at its Little Rock facility.

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Planned Parenthood Pauses Service in Texas

Jeffrey Hons of Planned Parenthood South Texas said the group’s abortion services in Texas have been “paused” statewide as they await guidance from their attorneys.

The announcement comes Friday, just hours after the U.S. Supreme Court overturned the right established in Roe v. Wade to terminate a pregnancy. The issue reverts to the states, many of which have taken steps to curtail or ban abortions.

A website affiliated with Planned Parenthood is advising that it is legal to travel out of state to get an abortion.

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Mayor: Abortion Remains Legal in DC

Mayor Muriel Bowser declared Friday that abortion remains legal in the nation’s capital despite the Supreme Court decision overturning Roe v. Wade.

“We are a pro-choice city,” she said at a news conference held at the local branch of Planned Parenthood. “Nothing has changed in Washington, D.C.”

But Bowser cautioned that the district is vulnerable because it is not a state and Congress retains oversight over it.

She pledged to continue fighting “to make sure we remain a safe city for abortion care and a legal city for abortion care.”

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California, Washington, Oregon Governors Vow to Help Women Seeking Abortions

The Democratic governors of California, Washington, and Oregon on Friday vowed to help women who travel to the West Coast seeking abortions following the Supreme Court’s decision to overturn Roe v. Wade.

The three states issued a joint “multi-state commitment” saying they will work together to defend patients and medical professionals providing reproductive health care.

They also pledged to “protect against judicial and local law enforcement cooperation with out-of-state investigations, inquiries, and arrests” regarding abortions performed in their states.

The liberal West Coast states anticipate an influx of people seeking abortions, especially as neighboring conservative states move to outlaw or greatly restrict the procedure.

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Republicans, Democrats React to Overturning of Roe v. Wade

Republican leaders are lauding the U.S. Supreme Court’s overturning of the Roe v. Wade decision that legalized abortion at a national level, while Democrats are decrying what they call the revocation of women’s rights.

Senate Minority Leader Mitch McConnell (R-Ky.), who played a role in preserving the seat left vacant by the late Supreme Court Justice Antonin Scalia and paving the way for a Republican-appointed conservative majority, said Friday’s ruling is a “historic victory.”

“The Court has corrected a terrible legal and moral error, like when Brown v. Board overruled Plessy v. Ferguson,” McConnell wrote in a statement, referencing the 1954 decision that effectively ended racial segregation in public schools.

“The Justices applied the Constitution. They carefully weighed the complex factors regarding precedent. The Court overturned mistaken rulings that even liberals have long admitted were incoherent, restoring the separation of powers,” he continued. “I commend the Court for its impartiality in the face of attempted intimidation.”

House Speaker Nancy Pelosi (D-Calif.) said at her press conference that there was “no point in saying ‘Good morning,’ because it certainly is not one.”

“Today, the Republican-controlled Supreme Court has achieved the GOP’s dark and extreme goal of ripping away women’s right to make their own reproductive health decisions,” Pelosi said. “Because of Donald Trump, Mitch McConnell, the Republican Party, and their supermajority on the Supreme Court, American women today have less freedom than their mothers.”

Pelosi also made unsubstantiated claims about what the ruling means for other issues related to pregnancy. “GOP extremists are even threatening to criminalize contraception, as well as in-vitro fertilization and post-miscarriage care,” she said, although the justices explicitly said in the majority opinion that this will not undo cases on contraception.

Read the full article here

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Biden Responds to Supreme Court Ruling

President Joe Biden on Friday criticized the Supreme Court’s decision to overturn Roe v. Wade, a 50-year-old ruling that characterized access to abortion as a constitutional right.

Biden referred to former President Donald Trump in his speech by name, saying that three justices that voted to overturn Roe v. Wade were appointed by him. The current president then alleged that Friday’s decision was the result of decades of conservative and religious groups’ attempts to get the law struck down.

“It’s a sad day for the court and a sad day for the country,” Biden said, adding that the 50-year-old ruling gave women the “power to control their own destiny.”

Biden then claimed that women’s reproductive health around the United States is now “at risk,” although states that choose to pass laws allowing abortions are still free to do so under the Friday ruling. Biden noted that women can still travel from a state that restricts abortion to another state that doesn’t have such laws to obtain one.

Later in his speech, Biden called on people to vote for candidates who will work to pass laws that support abortions during the 2022 midterms, suggesting that Democrats will likely use the Supreme Court ruling as a push to get their candidates elected to Congress.

Read the full article here

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DOJ Disagrees With Supreme Court Ruling

Attorney General Merrick Garland issued a statement on Friday, disagreeing with the Supreme Court’s majority opinion.

“The Justice Department strongly disagrees with the Court’s decision,” Garland wrote. “This decision deals a devastating blow to reproductive freedom in the United States. It will have an immediate and irreversible impact on the lives of people across the country. And it will be greatly disproportionate in its effect—with the greatest burdens felt by people of color and those of limited financial means.”

“The Supreme Court has eliminated an established right that has been an essential component of women’s liberty for half a century—a right that has safeguarded women’s ability to participate fully and equally in society,” Garland wrote. “And in renouncing this fundamental right, which it had repeatedly recognized and reaffirmed, the Court has upended the doctrine of stare decisis, a key pillar of the rule of law.”

Read the full article here

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Trump Reacts to Supreme Court Overturning Roe v. Wade

Former President Donald Trump on June 24 praised the Supreme Court after a majority of justices overturned Roe v. Wade, delivering the ability to regulate abortion back to states.

“This is following the Constitution, and giving rights back when they should have been given long ago,” Trump, a Republican, told Fox News.

The court’s decision was in a case brought by the state of Mississippi against Jackson Women’s Health Organization, an abortion clinic.

Justices found that Roe was wrongly decided in 1973, as was a ruling in 1992 that reaffirmed Roe.

Three justices Trump appointed—Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett—joined with Justices Clarence Thomas, a George H.W. Bush appointee; John Roberts, a George W. Bush appointee; and Samuel Alito, a George W. Bush appointee to form the majority.

Trump, asked by Fox whether he helped bring about the decision, said, “God made the decision.”

President Joe Biden, a Democrat, decried the ruling, saying in prepared remarks that the court “took away a right from the American people that it already recognized.”

“It was three justices named by one president, Donald Trump, who were the core of today’s decision to upend the scales of justice,” he added later.

The reaction among members of Congress largely split along party lines. Republicans joined Trump in cheering the decision while Democrats decried the ruling.

Read the full article here

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2 Dozen States to Restrict Abortion

More than two dozen states will move to restrict abortion following the Supreme Court’s Friday ruling that overturned Roe v. Wade and Planned Parenthood v. Casey.

The Guttmacher Institute, a research group, says that 13 states have “trigger laws” that bar most abortions that will take effect immediately after the ruling Friday. They are Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming.

Five more states had respective bans on abortion from the time before the Roe v. Wade ruling in 1973. They include Alabama, Arizona, Michigan, West Virginia, and Wisconsin.

Georgia, Iowa, Ohio, and South Carolina, according to the Institute, have laws that ban abortions after the 6-week mark. Those laws will be revisited after the overturning of Roe v. Wade.

Meanwhile, the legislatures of Florida, Indiana, Montana, and Nebraska appear likely to ban abortion based on previous and current efforts, the group says.

Overall, 26 of 50 U.S. states are likely or certain to ban abortion after the ruling was handed down Friday, the Institute says.

Read the full article here

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Vogue says overturning Roe means the US is not a ‘functioning democracy’ – here’s why they’re wrong

Vogue says overturning Roe means the US is not a ‘functioning democracy’ – here’s why they’re wrong

by Tim Worstall on June 24, 2022 Print:   Share:

Vogue reacts to the overturning of Roe v. Wade and it is possible to wonder how much they grasp the subject. For example: “[I]t’s still jarring — to say the least — that we now live in a country with no constitutional protections for abortion.”

Most countries don’t – they have laws passed by the legislature which allow it. It’s long been the U.S. that was the oddity with the constitutional right, rather than the normal passing of a law.

This is more than just some weird gotcha point because it leads in to what is then quoted:

“America isn’t a functioning democracy. It hasn’t been for some time.”

The overturning of Roe makes America more of a democracy, not less. If abortion is a constitutional right, then it’s something that voting and normal politics is not able to affect. Maybe that’s the way it should be too – we’re not expressing a view on that. But clearly, if abortion stops being a constitutional right and becomes something decided by State legislatures then that is more democracy, not less. Because, you know, people get to vote for legislators who then vote on abortion – democracy.

As the Vogue article goes on to say:

“Now, abortion rights will be up to individual states to grant, and some local politicians, including New York Attorney General Letitia James, have pledged to accommodate abortion-seekers in their states. James wrote on Twitter on Friday, “While other states strip away the fundamental right to choose, New York will always be a safe haven for anyone seeking an abortion.”

That’s democracy – that’s more democratic than the previous situation.

Again, we want to emphasize, we’re not here taking a view on right or wrong or what the law should be even as we obviously, like everyone else, have our own views. It’s that abortion as a constitutional right was, in many ways, anti-democratic as it meant that democratic politics was not able to decide upon nor even influence the subject. Perhaps that’s as it should be, perhaps it should be such a right – again, we are not expressing a view upon that here. But it is clear and obvious that making abortion subject to democratic politics, politicians, voters and legislatures, is more democratic than when it was a constitutional right. 

Vogue is, as we all know, part of the Conde Nast empire and as such is not short of the ability to research matters properly. The website alone gains some 16 million visits a month. We expect more accuracy from such an outlet.

It’s entirely possible to have any view one wants about the overturning of Roe. But it is factually incorrect to call it undemocratic – subjecting abortion law to legislatures is the very definition of democracy.

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The End of Roe v. Wade

The recent leak of a draft Supreme Court opinion overruling Roe v. Wade has prompted many commentators to charge that a hyper-politicized, conservative Court is on the verge of losing its legitimacy and plunging America into a constitutional abyss. Should the draft become the Court’s ruling, they argue, it would threaten a wide range of basic rights and perhaps the rule of law itself.

These are dire assessments, reflecting the country’s intense, long-standing divide over the issue of abortion. But they don’t stand up to scrutiny.

Consider first the fact of the leak itself in the Mississippi abortion case now under review, Dobbs v. Jackson Women’s Health Organization. It is a huge leak. Never before has a full draft, footnotes and all, of a would-be majority opinion seeped out to the world while a Supreme Court case of major moment was still under consideration. But based on what we now know, the leak of Justice Samuel Alito’s draft is less troubling than several previous episodes in Court history, in which various justices themselves blabbed either in the moment or soon after a decision. At present, there is no evidence that any justice was directly involved in delivering the draft to Politico.

Nor is there anything unusual in the leaked draft’s treatment of precedent. Supreme Court precedents strictly bind lower courts, but they do not bind the Supreme Court itself. Indeed, an essential function of the Court is to revise incorrect or outdated prior rulings. Over the last century, the Court has overruled itself about twice a year—roughly the same rate at which the Court has overturned acts of Congress.

Sometimes the Court comes to believe that an old case egregiously misinterpreted the Constitution, so the old case must go.

Precedents fall for many reasons. Sometimes the world changes in ways that mock the logic and expectations of the old ruling. Sometimes opposing lines of cases evolve and clash, and something must give. Most fundamentally, sometimes the Court comes to believe that an old case egregiously misinterpreted the Constitution, so the old case must go.


In 1954, in Brown v. Board of Education, the justices rightly buried their predecessors’ 1896 ruling in Plessy v. Ferguson, which had proclaimed the dubious doctrine of “separate but equal.” The best argument for this burial was that the Constitution really does promise racial equality, and racial segregation—American apartheid—was not equal. Likewise, the New Deal Court properly repudiated dozens of earlier Gilded Age cases that read property and contract rights far too broadly and in the process invalidated minimum-wage, maximum-hour, worker-safety and consumer-protection laws of various sorts—laws that are now seen, quite rightly, as perfectly proper.

The liberal Warren Court also overruled a staggering number of precedents, introducing now familiar terms to our constitutional lexicon. Mapp v. Ohio (1961) dramatically expanded the “exclusionary rule,” Reynolds v. Sims (1964) sweepingly mandated “one person, one vote,” and Miranda v. Arizona (1966) required the now iconic “Miranda warning.” These cases and dozens like them jettisoned earlier settled precedents that, in the minds of the justices, mangled the Constitution. As law professor Philip Kurland once wryly observed, “the list of opinions destroyed by the Warren Court reads like a table of contents from an old constitutional casebook.”

Today, the Supreme Court’s 1973 opinion in Roe v. Wade, written by Justice Harry Blackmun, is similarly ripe for reversal. In the eyes of many constitutional experts across the ideological spectrum, it too lacks solid grounding in the Constitution itself, as Justice Alito demonstrates at length in his leaked Dobbs draft. (Full disclosure: The draft cites me and several others as constitutional scholars who oppose Roe but personally support abortion rights.) Even the late Justice Ruth Bader Ginsburg was sharply critical of the decision.

In Roe, the Court did not even quote the constitutional language it purported to interpret in handing down its ruling—the Due Process Clause of the 14th Amendment. That clause holds that the government may not deprive any person of “life, liberty or property, without due process of law”—that is, without fair legal procedures, such as impartial judges and juries, defense attorneys and the like. The Texas abortion law at issue in Roe in fact provided for fair courtroom procedures, which made the decision’s “due process” argument textual gibberish.

Constitutional history also cut hard against Roe. When Americans adopted the 14th Amendment in the 1860s, almost no one thought it barred laws against abortion. Virtually every state back then prohibited abortions. Roe likewise ran counter to state laws still on the books almost everywhere in the 1970s. The opinion clumsily cited various earlier precedents involving “privacy” rights related to contraception and erotic expression, but in a devastating concession, the Roe Court admitted that the presence of a living fetus in abortion scenarios made the matter “inherently different” from all previous privacy cases. And Roe said nothing, amazingly, about the relationship of abortion rights to women’s equality.

Does Justice Alito’s draft, as many are now claiming, inflict collateral damage on other areas of constitutional case law, such as the Warren Court’s precedents on contraception and interracial marriage?

Supreme Court nominee Robert Bork at his 1987 Senate confirmation hearing.Photo: Charles Tasnadi/Associated Press.

It does not. In fact, the Dobbs draft reinforces these iconic opinions by explaining why they were right—namely, because the freedoms recognized in these cases were “deeply rooted in the Nation’s history and tradition.” These watershed rulings were once controversial in conservative constitutional circles, thanks to the influential work of Robert Bork, but now they are safe.

As a constitutional scholar at Yale and later as an unsuccessful nominee to the Supreme Court, Bork denounced a landmark contraception case, Griswold v. Connecticut (1965), in which the Court declared unconstitutional a Connecticut law criminalizing the use of contraception, even inside the marital bedroom. Bork considered the law “nutty” but argued that there was no broad constitutional “right to privacy,” as the Court had declared in its ruling.

But there were other, more conservative grounds for the Griswold decision. In an earlier case involving the same Connecticut law, Poe v. Ullman (1961), Justice John Marshall Harlan explained why the issue was simple for a traditionalist such as himself: “The utter novelty” of the Connecticut law was “conclusive.” No other state had ever “made the use of contraceptives a crime.”

In the 1972 case of Eisenstadt v. Baird, the Court extended Griswold to invalidate a Massachusetts statute that banned the distribution of contraceptives to unmarried individuals. By then, such laws were fast becoming outliers in America, rarely enforced even if on the books. Today, no state or political party is seriously trying to undo this precedent. In his 2006 Senate confirmation hearings, Justice Alito, a traditionalist self-consciously in the Harlan mold, minced no words on the issue: “I do agree with the result in Eisenstadt.” His leaked draft opinion in Dobbs says much the same thing.

Justice Alito has never said anything remotely similar about Roe. For traditionalists, there is an essential difference between the contraception and abortion cases. Whereas the Court in Griswold sided with 49 states against the outlier Connecticut, the Court in Roe invalidated the laws of at least 49—perhaps all 50—states. The Dobbs draft takes pains to cite this stunning fact.

In keeping with a long line of cases and the spirit of the written Constitution, Justice Alito notes that rights which are neither explicit nor implicit in the Constitution’s text and history generally need strong roots in the mores and practices of the American people. One way to measure these mores and practices is to count state laws: How many states recognize a putative right and how many try to abridge it? How often and how strictly are laws on the books in fact enforced?

Consider another landmark Warren Court case that the Dobbs draft cites with implicit approval, Loving v. Virginia, which struck down laws against interracial marriage. The Court’s opinion expressly noted that by 1967—the year the case came down—more than two thirds of the states allowed interracial marriage. Many of the rest allowed interracial couples to marry elsewhere and then return home as lawful spouses. Today, interracial marriage is even more firmly established as a bedrock feature of American life.

Mildred and Richard Loving were the plaintiffs in Loving v. Virginia, the 1967 case in which the Supreme Court invalidated laws prohibiting interracial marriage.Photo: Bettmann Archive/Getty Images

The ruling in Roe v. Wade, by contrast, has been under fierce and relentless attack for decades in most states. It has been unremittingly condemned in the quadrennial party platforms of one of America’s two major parties, a party that has won half of the presidential elections since Roe. Roe is also decisively different from various contraception and marriage cases because, as Justice Alito’s draft opinion stresses, abortion uniquely involves destroying unborn human life, typically long after conception and implantation.

Perhaps surprisingly, the draft’s logic also buttresses certain important LGBT rights. As the Court emphasized in its landmark ruling in Lawrence v. Texas (2003), which invalidated anti-sodomy laws, such laws were almost never enforced in America against private consensual conduct, but rather only in cases of rape or public indecency. Justice Anthony Kennedy’s majority opinion reported that only 13 states at the time still had laws prohibiting consensual adult sodomy and only four states singled out same-sex sodomy. Even in these outlier states, there was “a pattern of nonenforcement with respect to adults acting in private.”

Justice Kennedy’s later landmark opinion for the Court, Obergefell v. Hodges (2015), which required all states to recognize same-sex marriage, raises rather different issues. The Dobbs draft does not directly challenge Obergefell and purports to limit its own thrust to abortion cases. But the draft’s logic could be seen to undermine the Obergefell decision, which was issued over the dissents of Justices Alito and other conservative justices, who argued that same-sex marriage was not deeply rooted in American tradition.

Every year, same-sex marriage, unlike abortion, becomes more widespread and accepted.

The status of same-sex marriage is obviously changing, however, and such unions are fast becoming a pillar of modern American life. Every year, same-sex marriage, unlike abortion, becomes more widespread and accepted—more deeply rooted and less controversial. And crucially, Obergefell is at heart a gender equality case. Traditional marriage laws discriminated on the basis of sexual orientation—allowing straight people but not gay people to pursue marital happiness. These laws also discriminated on the basis of sex: Patrick was allowed to marry Mary, but Patricia was not.

Tradition and state-counting are sound ways of thinking about unenumerated American liberties, but rights explicitly mentioned in the Constitution—such as the rights of racial and gender equality—warrant stricter judicial protection, even when such rights contradict dominant customs. The Dobbs draft says little—too little—about sex and gender equality. Advocates for reproductive rights also slighted issues of equality in their oral argument in Dobbs, recapitulating one of the biggest flaws of the Roe opinion itself. Later drafts of Justice Alito’s opinion will likely need to take equality issues more seriously as the dissents of the Court’s liberals begin to circulate, no doubt highlighting and criticizing this major lapse.

In the end, Dobbs will probably be decided by a 6-3 vote, with Justice Alito joined by the four other justices who reportedly endorse his draft (Thomas, Gorsuch, Kavanaugh and Barrett). Chief Justice John Roberts, who reportedly is less keen on the draft, will likely uphold the Mississippi law on the narrow grounds that it gives a wavering pregnant woman enough time—15 weeks—to decide. In recent decades, less than 5% of all abortions have occurred after 15 weeks.

So long as abortion remains legal in many blue states—and nothing in the Dobbs draft dictates otherwise—most women who miss deadlines in their red home states should be able to travel to get the treatment they desire. Indigent women will doubtless experience special burdens, which makes it imperative for charities to ramp up assistance for women in distress.

A very different issue, however, would arise were Republicans to sweep national elections in 2024 and then pass a national abortion ban. This is the scenario that should set off the loudest alarm bells for Americans who support abortion rights.

Demonstrators hold up pictures of the justices at a rally for abortion rights outside the Supreme Court, December 2021.Photo: Bill Clark/CQ-Roll Call, Inc/Getty Images

As for concerns about judicial partisanship more generally, we must remember that in recent years conservative justices have repeatedly crossed the aisle to give liberals victories in high-profile cases. This is not an everyday event, but nowhere else in America do conservatives cross over nearly so much when it matters. Thus, Chief Justice Roberts joined liberals to uphold Obamacare in three different cases over the course of eight years and also crossed the aisle to invalidate the Trump administration’s improper treatment of noncitizens in the 2020 census. He also joined liberals to affirm sweeping rights of gay employees in the private sector, in an opinion authored by a Trump appointee, Justice Gorsuch. The chief justice and another Trump appointee, Justice Kavanaugh, also sided with the liberals in little noticed but hugely consequential cases involving the presidential election of 2020.

Notwithstanding the alarms triggered by the Dobbs leak and draft, what I told the Senate back in 2018, testifying as a Never Trumper in support of Brett Kavanaugh’s nomination to the Court, remains true: “Americans generally and with good reason view today’s Court more favorably than today’s Congress and Presidency. The current justices are outstanding lawyers who do loads of close reading, careful writing, and deep thinking; try hard to see other points of view; spend lots of time pondering constitutional law; and spend little time posturing for cameras, dialing for dollars, tweeting snark, or pandering to uninformed extremists or arrogant donors. Can today’s President and Congress say the same?”

In short, I am a Democrat who supports abortion rights but opposes Roe. The Court’s ruling in the case was simply not grounded either in what the Constitution says or in the long-standing, widely embraced mores and practices of the country. Perhaps I’m wrong in thinking that, and perhaps the Dobbs draft is wrong too. But there is nothing radical, illegitimate or improperly political in what Justice Alito has written.

Mr. Amar is a professor of constitutional law at Yale and the author, most recently, of “The Words That Made Us: America’s Constitutional Conversation, 1760-1840.”

Appeared in the May 14, 2022, print edition as ‘The End of Roe v. Wade A Precedent With Weak Constitutional Reasoning’.

https://www.wsj.com/articles/the-end-of-roe-v-wade-11652453609?mod=Searchresults_pos3&page=1

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